Previously, I have written about legal documents needed to assist a relative or friend who has diminished mental capacity. However, what if a person who is now incapacitated has not already executed a financial or healthcare power of attorney?
Often, relatives of elderly adults find themselves without the legal authority to help their loved ones who have become incapacitated due to mental disorders such as Alzheimer’s Disease or dementia. In most of these cases, the incapacitated person has not executed a power of attorney which allows someone to act on the incapacitated person’s behalf in personal or financial affairs. Therefore, the only way to acquire this authority is to have someone appointed as guardian of the incapacitated person.
Guardians are appointed by the Court, unlike Agents, who are chosen by the person drawing up the Power of Attorney. The guardianship process involves filing a petition with the Court and holding a hearing to establish the incapacity and need for a guardian. This process involves risks that a properly executed power of attorney does not.
Initially, the Court must make a determination that an incapacity exists. Reaching that determination will require medical reports from two independent physicians.
Secondly, the Court must find that there is a need for guardianship services. The Court then has the power to fashion the scope of the guardianship, making it as limited or broad as the facts suggest is necessary. A petitioner must prove to the Court’s satisfaction that the individual is incapacitated and that there is a need for a guardian.
Furthermore, a petitioner (the person requesting guardianship over another individual) runs the risk that the petition will be opposed. Family members often disagree as to who should be appointed guardian or if a guardian should be appointed at all. The alleged incapacitated person has the right to counsel and the Court typically appoints counsel in disputed cases. In the event the petition is disputed, the proceeding could turn into extensive litigation, greatly increasing the cost and time involved.
Once appointed, a guardian has considerable power as well as numerous duties and responsibilities. A guardian may have the power to manage the personal affairs (a guardian of the person) or the financial affairs (a guardian of the estate) of the ward, or both.
Although the appointment of a guardian brings considerable benefits to the ward, the appointment also brings considerable duties and responsibilities to the guardian. Guardianship proceedings should be viewed as a last resort. Whenever possible, the proceedings should be avoided through the careful drafting of a comprehensive durable power of attorney.